Daffron v. State

Ricky DAFFRON v. STATE of Arkansas

CR 96-14                                           ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered July 15, 1996


1.   Appeal & error -- Ark. Sup. Ct. R. 4-2(b)(2) contemplates
     filing of substituted brief by appellant after filing of
     appellee's brief -- appellee afforded opportunity to
     supplement brief. -- Rule 4-2(b)(2) of the Rules of the
     Supreme Court clearly contemplates the filing of a substituted
     brief by an appellant after an appellee's brief has been
     filed, even when, as in the present case, the appellee has
     called attention to the abstract deficiency in its brief; the
     rule further provides that the appellee be afforded the
     opportunity to revise or supplement its brief at the expense
     of the appellant or the appellant's counsel.  

2.   Appeal & error -- supreme court routinely grants appellant's
     request to file substituted brief when case not ready for
     submission -- discretion to deny request. -- The supreme court
     routinely grants an appellant's request to file a substituted
     brief when a case is not ready for submission; the court has
     the discretion to deny a request to file a substituted brief
     if an unreasonable or unjust delay in the disposition of the
     appeal will result or if it is not unduly harsh to affirm the
     case without reaching the merits of the appellant's argument.

3.   Appeal & error -- appellate court may permit supplemental
     abstract in reply brief upon motion. -- Rule 4-1(b) of the
     Rules of the Supreme Court provides that an appellant's reply
     brief "shall not include any supplemental abstract unless
     permitted by the court upon motion."

4.   Appeal & error -- case not yet submitted for decision --
     motion to supplement abstract and file substituted brief
     granted. -- Where appellant had filed a motion to supplement
     abstract and file substituted brief pursuant to the present
     Ark. Sup. Ct. R. 4-2(b)(2), and as his case had not yet been
     submitted to the supreme court for decision, his motion was
     timely filed and was granted.


     Motion to Supplement Abstract and File Substituted Brief;
granted.
     James Law Firm, by: William Owen James, Jr., and Kelli S.
Cashion, for appellant.
     Winston Bryant, Att'y Gen., by:  J. Brent Standridge, Asst.
Att'y Gen., for appellee.

     Per Curiam.*ADVREP*SC14*








RICKY DAFFRON,
                    APPELLANT,

V.

STATE OF ARKANSAS,
                    APPELLEE,



July 15, 1996

CR96-14


MOTION TO SUPPLEMENT ABSTRACT
AND FILE SUPPLEMENTED BRIEF,





MOTION GRANTED.



                           Per Curiam



     Appellant Ricky Daffron, through his counsel, seeks permission
to file a supplemental abstract and substituted brief in connection
with his appeal of the denial of a Rule 37 petition.  The State
asks that we deny Daffron's motion because counsel for the State
pointed out in its brief that Daffron failed to abstract the order
denying his Rule 37 petition and argued that the case should be
affirmed on this basis.  
     The State acknowledges that in Wilson v. State, 306 Ark. 179,
810 S.W.2d 337 (1991), this court permitted appellant's counsel to
file a supplemental abstract and brief in a Rule 37 appeal, under
identical circumstances.  However, the State asks that we adopt the
rationale of Jones v. McCool, 318 Ark. 688, 886 S.W.2d 633 (1994),
in which we turned down a pro se appellant's request to file a
supplemental abstract and brief in order to cure an abstract
deficiency.  Jones had failed to include an abstract of any part of
the record in his brief.  In the Jones per curiam opinion we said:

     Nearly a month after the appellee State filed its brief,
     appellant filed a motion seeking to amend the brief to
     include an abstract.  The motion is denied.  Once the
     appellee has filed its brief, it is too late to file a
     motion to amend the appellant's brief.
(Emphasis supplied.)  No authority is given in Jones for this
declaration, perhaps because none exists under either our present
Rule 4-2(b)(2), the former Rule 9(e)(2), or the cases which have
interpreted those rules in this context.  
     The rationale of Jones seems to be that a pro se appellant
should not be afforded the same opportunity to correct a deficient
abstract as is an appellant represented by counsel.  We said as
much, unfortunately, in Wilson, supra, where we granted counsel's
motion to supplement abstract, but added the following caveat:
      If appellant had been proceeding pro se and had
     submitted a deficient abstract, we would not hesitate to
     affirm pursuant to our Rule 9 since a litigant who elects
     to proceed pro se is required to conform to the rules of
     procedure.  Peterson v. State, 289 Ark. 452, 711 S.W.2d 830 (1986).  Where the error was made by appointed
     counsel, however, we will permit the abstract to be
     supplemented.
     Pro se litigants are of course required to conform to the
rules of procedure.  However, Rule 4-2(b)(2) provides:
     Whether or not the appellee has called attention to
     deficiencies in the appellant's abstract, the Court may
     treat the question when the case is submitted on its
     merits. If the Court finds the abstract to be flagrantly
     deficient, or to cause an unreasonable or unjust delay in
     the disposition of the appeal, the judgment or decree may
     be affirmed for noncompliance with the Rule. If the Court
     considers that action to be unduly harsh, the appellant's
     attorney may be allowed time to revise the brief, at his
     or her own expense, to conform to Rule 4-2(a)(6). Mere
     modifications of the original brief by the appellant, as
     by interlineation, will not be accepted by the Clerk.
     Upon the filing of such a substituted brief by the
     appellant, the appellee will be afforded an opportunity
     to revise or supplement the brief, at the expense of the
     appellant or the appellant's counsel, as the Court may
     direct.
(Emphasis supplied.)
     This rule clearly contemplates the filing of a substituted
brief by an appellant after an appellee's brief has been filed,
even when, as in the present case, the appellee has called
attention to the abstract deficiency in its brief.  The rule
further provides that the appellee be afforded the opportunity to
revise or supplement its brief at the expense of the appellant or
the appellant's counsel.  We routinely grant an appellant's request
to file a substituted brief when a case is not ready for
submission.  Dixon Ticonderoga Co. v. Winburn Tile Mfg., 322 Ark.
817, 911 S.W.2d 955 (1995).  Of course, this court has the
discretion to deny a request to file a substituted brief if an
unreasonable or unjust delay in the disposition of the appeal will
result or if it is not unduly harsh to affirm the case without
reaching the merits of the appellant's argument.  This is a far cry
from the bald assertion in Jones that it "is too late to file a
motion to amend" after the appellee's brief has been filed.
     The State also contends that the opinion in Jones is
consistent with our holdings that an appellant may not supplement
an abstract in a reply brief.  See Harris v. State, 315 Ark. 398,
868 S.W.2d 58 (1993).  However, Rule 4-1(b) provides that an
appellant's reply brief "shall not include any supplemental
abstract unless permitted by the court upon motion."  (Emphasis
supplied.)  Further, in Harris, we noted that Harris requested in
his reply brief that he be permitted to supplement his abstract but
that his request "was without a prior timely motion, and as a
matter of course, would not (and did not) come to the court's
attention until after this case was submitted to the court for
decision."  (Emphasis supplied.)
     The State argues that it is unfair to allow an appellant to
supplement his abstract after the appellee has pointed out the
deficiencies in the form of a meritorious procedural argument in
its brief, and that this practice should be stopped.  This is in
effect an argument for a substantial change in our Rules 4-1 and 4-
2.
     However, Daffron has filed a motion to supplement abstract and
file substituted brief pursuant to our present Rule 4-2(b)(2).  As
his case has not yet been submitted to this court for decision, his
motion is timely filed and is granted.
     Dudley, J., not participating.